Citation Nr: 0404098
Decision Date: 02/12/04 Archive Date: 02/23/04
DOCKET NO. 02-08 854A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to service connection for bilateral Achilles
tendonitis, as secondary to service-connected bilateral knee
and back disabilities.
2. Entitlement to an increased (compensable) evaluation for
left knee impairment.
3. Entitlement to an initial evaluation in excess of 20
percent for service-connected degenerative disc disease of
the lumbar spine, from August 1999 to November 2001.
4. Entitlement to an initial evaluation in excess of 40
percent for service-connected degenerative disc disease of
the lumbar spine, from November 2001 forward.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Counsel
INTRODUCTION
The veteran had active duty from July 1971 to October 1973
and from October 1973 to January 1977, with subsequent
reserve duty.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2000 rating decision by
the San Diego, California, Regional Office (RO) of the
Department of Veterans Affairs (VA), that denied service
connection for bilateral Achilles tendonitis, as secondary to
service-connected bilateral knee and back disabilities, and
denied entitlement to an increased rating for left knee
impairment.
In January 2002, the RO also awarded service connection for
degenerative disc disease of the lumbar spine, evaluated as
20 percent disabling from August 27, 1999 to November 26,
2001, and as 40 percent disabling from November 27, 2001,
forward. The veteran filed a notice of disagreement with the
RO's determination in May 2002, thereby initiating, but not
perfecting, an appeal. See Statement of Representative in
Appeals Case, dated May 22, 2002. Therefore, for reasons
that are discussed in more detail below, the issues on appeal
have been recharacterized as shown above.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
Review of the claims file reveals that the veteran has not
been given adequate notice pursuant to the Veterans Claim
Assistance Act (VCAA) of 2000. See 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002). This must be accomplished on
remand. While the Board regrets the delay in appellate
review, the United States Court of Appeals for Veterans
Claims (Court) has made it clear that failure to adequately
show compliance with VCAA notice requirements and Board
failure to enforce compliance with such notice requirements
is remandable error. Huston v. Principe, 17 Vet.App. 195,
202 (2003).
Regarding the claim for entitlement to service connection for
Achilles tendonitis on a secondary basis, two VA doctors have
provided opinions that there is no direct relationship
between the veteran's Achilles tendonitis and his service-
connected knee or back problems. However, the veteran's
representative has requested that an additional opinion be
obtained concerning whether or not the veteran's Achilles
tendonitis was aggravated by his service-connected knee or
back problems. See 38 C.F.R. § 3.310. Accordingly, on
remand an appropriate opinion should be obtained. See
38 C.F.R. § 3.159(c)(4). Also, from the veteran's statements
and a private physician's note of January 2002, there may be
outstanding medical records pertinent to this issue that
should be obtained.
As the case must be remanded for the foregoing reasons, the
veteran should also be afforded an examination to assess the
current severity of his service-connected left knee
impairment.
With respect to the claim for a higher rating for
degenerative disc disease of the lumbar spine, as noted
above, in January 2002 the RO awarded service connection for
this disability, evaluated as 20 percent disabling from
August 27, 1999 to November 26, 2001, and as 40 percent
disabling from November 27, 2001, forward. The veteran filed
a notice of disagreement (NOD) with the RO's determination in
May 2002. Because a timely NOD was filed, but the RO has not
yet provided the veteran a statement of the case (SOC) in
response to his filing of the NOD, this issue must be
remanded to the RO for correction of this procedural defect.
See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. Concerning the claims for service
connection for Achilles tendonitis on a
secondary basis and entitlement to an
increased rating for service-connected left
knee impairment, notify the veteran (1) of
the information and evidence not of record
that is necessary to substantiate the
claims, (2) of the information and evidence
that VA will seek to obtain on his behalf,
(3) of the information and evidence that he
is expected to provide and (4) request that
he provide any evidence in his possession
that pertains to the claim. A record of
his notification must be incorporated into
the claims file.
2. Ask the veteran to provided the names
and addresses of all medical care providers
(including Balboa Naval Hospital, if
applicable) who have recently treated him
for a left knee disorder or Achilles
tendonitis and make arrangements to obtain
these records.
3. After the foregoing development has
been accomplished, send the claims folder
to a VA doctor for review, preferably one
of the doctors that provided an opinion
concerning the veteran's Achilles
tendonitis claim in May 2000 or December
2001. The doctor should be asked to
indicate in the report whether or not the
claims folder has been reviewed.
The doctor should provide an opinion as to
whether it is at least as likely as not
(i.e., is there at least a 50 percent
probability) that the veteran's Achilles
tendonitis was aggravated (as opposed to
caused) by his service-connected knee
and/or back disabilities. The doctor must
provide a comprehensive report including
complete rationales for all conclusions
reached.
4. Schedule the veteran for a VA
orthopedic examination, limited to the left
knee. The examiner should be provided a
copy of this remand together with the
veteran's entire claims folder, and the
examiner is asked to indicate that he or
she has reviewed the claims folder. All
necessary tests, including X-rays if
indicated, should be conducted, and the
examiner should review the results of any
testing prior to completion of the report.
The examiner should identify all residuals
attributable to the veteran's service-
connected left knee impairment.
The examiner should report the range of
motion measurements for the left knee in
degrees, and should also indicate what
would be the normal range of motion.
Whether there is any pain, weakened
movement, excess fatigability or
incoordination on movement should be noted,
and whether there is likely to be
additional range of motion loss due to any
of the following should be addressed: (1)
pain on use, including during flare-ups;
(2) weakened movement; (3) excess
fatigability; or (4) incoordination. The
examiner is asked to describe whether pain
significantly limits functional ability
during flare-ups or when the left knee is
used repeatedly. All limitation of
function must be identified. If there is
no pain, no limitation of motion and/or no
limitation of function, such facts must be
noted in the report.
The examiner should also state whether
there is any evidence of ankylosis or
recurrent subluxation or lateral
instability of the left knee, and if so, to
what extent.
Any indications that the veteran's
complaints of pain or other symptomatology
are not in accord with physical findings on
examination should be directly addressed
and discussed in the examination report.
The examiner must provide a comprehensive
report including complete rationales for
all conclusions reached.
5. Review the claims folder and ensure
that ensure that all of the foregoing
development have been conducted and
completed in full. Specific attention is
directed to the examination report(s). If
the report(s) is deficient in any manner or
fails to provide the specific information
requested, it must be returned for
correction. 38 C.F.R. § 4.2 (2003).
6. Readjudicate the veteran's claims for
service connection for Achilles tendonitis
on a secondary basis and entitlement to an
increased rating for service-connected left
knee impairment, with application of all
appropriate laws and regulations and
consideration of any additional information
obtained as a result of this remand. If
the benefit sought on appeal remains
denied, the veteran and his representative
should be provided a supplemental statement
of the case and be given an appropriate
period to respond. Thereafter, subject to
current appellate procedures, the case
should be returned to the Board for further
appellate consideration, if appropriate.
7. Finally, issue an SOC to the veteran
and his representative concerning the
claims for entitlement to an initial
evaluation in excess of 20 percent for
service-connected degenerative disc disease
of the lumbar spine, from August 1999 to
November 2001, and entitlement to an
initial evaluation in excess of 40 percent
for service-connected degenerative disc
disease of the lumbar spine, from November
2001 forward. See Manlincon v. West, 12
Vet. App. 238, 240-41 (1999). The veteran
should be informed that he must file a
timely and adequate substantive appeal in
order to perfect an appeal of these issues.
See 38 C.F.R. §§ 20.200, 20.202, and
20.302(b). If a timely substantive appeal
is not filed, these claims should not be
certified to the Board.
The appellant has the right to submit additional evidence and
argument on the matter that the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). The purposes of this REMAND are to obtain additional
information and comply with due process considerations. No
inference should be drawn regarding the final disposition of
these claims as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).